Kevin M. Korsmo

In Ferguson v. City of Dayton, Laurie Ferguson challenged the City of Dayton's approval of a building permit for a pole structure on neighboring property, disputing the city's changed interpretation of height limits under its municipal code; after the city council referred the matter for review, the Planning Commission affirmed the planner's interpretation in July 2010, and Ferguson filed a Land Use Petition Act (LUPA) action in superior court shortly thereafter. The trial court dismissed the petition as untimely under LUPA's 21-day filing deadline, treating the original August 2009 building permit as the final land use decision. The Washington Court of Appeals reversed, holding that the petition was timely because it was filed within 21 days of the Planning Commission's ruling. The court reasoned that LUPA defines a "land use decision" as a final determination by the local body with ultimate authority, including those hearing appeals, and that an available administrative review process must be exhausted before a permit becomes final for purposes of judicial review.

propertyprocedure

Jasmine Singh was convicted of first-degree perjury after testifying at an ER 404(b) hearing in her brother Anthony Singh’s criminal case that she had not discussed the case, its witnesses, or related facts with him during recorded jail phone calls. The State introduced those recordings—made with the parties’ knowledge—as evidence that she had in fact spoken with her brother about expected prosecution witnesses, gang-related testimony, discovery materials, and her own planned testimony denying his gang membership. In a bench trial, the court found the statements false, knowingly made, and material, and concluded that the recordings themselves supplied the heightened quantum of proof traditionally required in perjury prosecutions. The Court of Appeals affirmed, holding that the recorded evidence was sufficient to establish each element beyond a reasonable doubt even without independent corroborating witnesses.

criminal lawprocedure

The case involved Waymond Turner’s appeal of his convictions for second-degree malicious mischief and third-degree assault arising from a domestic dispute at his parents’ home. After police responded, Turner resisted arrest by grabbing an officer around the waist, later head-butted the officer while being placed in a patrol car, and kicked out the car’s window, rendering the vehicle unusable for a day. The Court of Appeals affirmed both convictions, holding that the evidence was sufficient because RCW 9A.48.080(1)(b) requires only that the defendant create a substantial risk of interrupting public service, not an actual interruption, and that Turner failed to demonstrate any prejudicial error from his counsel’s performance in addressing the State’s theory of assault. A partial dissent would have reversed the assault conviction on grounds of ineffective assistance for not seeking a bill of particulars to clarify the factual basis of the charge.

criminal lawprocedure

In State v. Clark, Michael Clark, an enrolled Colville tribal member, was convicted of first-degree theft after police executed a state-issued search warrant at his home on reservation trust land and recovered items stolen from a railroad workshop located on fee land within the reservation boundaries. Clark challenged the conviction on two grounds: that Okanogan County courts lacked authority to issue the warrant for trust land and that the county’s jury summons process systematically excluded tribal members living on the reservation, resulting in an unrepresentative venire. The Washington Court of Appeals affirmed the conviction. It held that state courts had jurisdiction to issue the warrant because the underlying crime occurred on fee land and U.S. Supreme Court precedent permits such warrants in these circumstances. On the jury issue, the court found no evidence of systematic exclusion, noting that Native Americans comprise 11 percent of the county population, routinely serve on juries, and that the record showed no pattern of non-response or exclusion from venires.

criminal lawcivil rightsprocedurefederal power

In State v. Lawrence, the defendant was charged with three counts of attempted first-degree murder after shooting at acquaintances he believed were threatening his family; he appealed his convictions, arguing that the trial court erred in repeatedly finding him competent to stand trial and in allowing him to represent himself. The Washington Court of Appeals affirmed the convictions. It held that the trial court acted within its discretion in determining competency, as it properly relied on evaluations from Eastern State Hospital and independent experts showing that Lawrence’s mental condition had stabilized sufficiently for trial, despite earlier periods of incompetence and a fluid mental illness involving psychosis and bipolar features. The appellate court further concluded that the trial judge conducted an adequate colloquy and had tenable grounds to grant self-representation once Lawrence was found competent, as the record showed he understood the proceedings and could present his defense without the prior mental-health issues impairing his ability at that time.

criminal lawprocedure

The case involved Rebecca Desmon, a school bus driver whose commercial driver’s license was canceled by the Washington Department of of Licensing after she failed a skills retest required as part of DOL’s annual audit of third-party testers. The Court of Appeals reversed the superior court’s grant of summary judgment to DOL, concluding that the department lacked authority to cancel her license solely on the basis of the failed audit retest. Under the plain language of RCW 46.20.305, DOL may require an examination only when it has good cause to believe a driver is incompetent or unqualified, after which it may suspend or revoke—but not cancel—the license if the driver fails or refuses a retest; the audit process did not originate from such good cause, and cancellation was not an authorized remedy.

business & regulatory

In State v. Sanchez, the prosecution charged Eliseo Sanchez with residential burglary with sexual motivation after he entered his ex-wife’s home in violation of a 2009 domestic violence no-contact order that excluded him from the residence, despite her eventual consent to his presence during a week-long stay that included an alleged assault. The trial court dismissed the burglary count before trial under a Knapstad motion, finding that the ex-wife’s consent meant Sanchez had not entered or remained unlawfully. The Court of Appeals reversed, holding that only the issuing court can modify or waive a no-contact order and that the protected party cannot consent to contact that the order forbids. The court reasoned that Washington’s strong public policy against domestic violence, reflected in chapter 26.50 RCW and cases such as State v. Dejarlais, prevents a victim from overriding a judicial exclusion order, and it distinguished State v. Wilson as not involving a direct conflict between a court order and a property possessor’s wishes. The case was remanded with directions to reinstate the charge.

criminal lawfamily lawpropertyprocedure

In State v. Villano, a juvenile court convicted Doroteo Villano of first-degree arson and imposed post-release supervision conditions that included a prohibition on possessing “gang paraphernalia,” along with other gang-related restrictions. Villano appealed, arguing that the gang paraphernalia condition was unconstitutionally vague. The Washington Court of Appeals affirmed the arson conviction but agreed with the parties that the condition violated due process because it failed to provide fair notice of prohibited conduct and invited arbitrary enforcement; the court noted that the phrase was even less specific than a similar drug-paraphernalia condition previously struck down in State v. Sanchez Valencia. The court therefore remanded the case with directions to strike the gang paraphernalia restriction from the disposition order.

criminal lawcivil rights

In State v. Miller, a 17-year-old defendant challenged his first-degree robbery conviction, arguing that police violated his rights by giving him only the standard adult Miranda warnings during a custodial interview instead of the juvenile-specific version used in Washington, which explains that statements can be used in either juvenile or adult court. The Court of Appeals of Washington affirmed the conviction, holding that the standard Miranda warnings were legally sufficient and that Miller had knowingly and voluntarily waived his rights. The court reasoned that neither the U.S. Supreme Court in Miranda v. Arizona or In re Gault nor Washington precedent requires additional juvenile language, as the core warnings adequately inform suspects of their rights to silence and counsel. It noted that while including such language might be better practice to avoid potential confusion for younger suspects, it is not constitutionally mandated. The trial court's finding of a valid waiver based on the totality of circumstances was upheld.

criminal lawprocedure

In State v. Schroeder, Michael Schroeder appealed his convictions for second-degree unlawful possession of a firearm and possession of a controlled substance (hydrocodone), arguing that admission of a laboratory report identifying the pills violated his Sixth Amendment confrontation rights because the testing analyst did not testify, and that his counsel was ineffective for failing to object or demand the analyst’s presence. The Washington Court of Appeals affirmed the convictions. The court held that Schroeder waived any confrontation claim by not objecting to the report’s admission at trial and by failing to serve a timely written demand for the analyst under CrR 6.13(b), a procedural rule consistent with the U.S. Supreme Court’s decision in Melendez-Diaz v. Massachusetts, which permits states to require advance assertion of confrontation rights. The opinion notes that the defense also did not challenge related officer testimony about the pills.

criminal lawprocedure

In State v. Hilton, Kevin Hilton was retried and convicted by a jury of two counts of aggravated first degree murder for the 2002 shooting deaths of his landlords, Josephine and Lawrence Ulrich, in their Richland home. The Court of Appeals affirmed the convictions after addressing multiple issues from the retrial, including the exclusion of third-party perpetrator evidence pointing to the victims’ daughter, the scope of cross-examination, references to the prior proceeding, and prosecutorial comments on the defendant’s testimony. The court reasoned that the trial judge correctly barred speculative third-party evidence lacking a sufficient factual nexus to the crime, permitted thorough cross-examination on relevant topics without allowing improper character attacks, and found that any error in allowing tailoring arguments during closing was harmless in light of the evidence, which included matching .45-caliber shell casings, the defendant’s unpaid rent and phone call to the victims, and the absence of forced entry.

criminal lawprocedure

This case involved Loren Griffith, a delivery driver terminated by his employer after a series of customer incidents, including a 2009 comment to a customer that led to his suspension and an unauthorized attempt to apologize in person that resulted in him being banned from the customer's premises. Griffith applied for unemployment benefits, which the Department of Employment Security initially granted but later denied after determining his actions amounted to misconduct; an administrative law judge initially ruled in his favor, but the commissioner reversed that decision. The court affirmed the commissioner's ruling under Washington's Administrative Procedure Act, finding substantial evidence supported the factual determinations of prior warnings and intentional conduct that harmed the employer's interests, and concluding that this met the legal standard for misconduct disqualifying him from benefits.

labor & employmentprocedure

The case involved a dispute over a 1994 ground lease allowing a billboard on the roof of a commercial building in Spokane, which Lamar Outdoor Advertising succeeded to as lessee; after the building was converted to condominiums and portions sold, the new owners terminated the lease and removed the sign, prompting Lamar to sue for breach and obtain a default judgment against some defendants. The trial court vacated the default judgment due to excusable neglect and lack of required notice to appearing parties, then granted summary judgment to the defendants on the merits. The Court of Appeals affirmed, holding that the lease permitted termination upon sale of the property (including the roof allocated to the purchasing entity), that any ambiguity in the termination clause was construed against the drafter, and that the trial court did not abuse its discretion in setting aside the default. Lamar's requests for attorney fees were denied.

propertyprocedurebusiness & regulatory

In State v. King, the defendant pleaded guilty to vehicular assault and witness tampering after a car accident in which he was accused of driving under the influence and attempting to induce a witness to change her account. The trial court accepted the pleas and imposed concurrent 55-month sentences based on offender scores of 10 and 9, which incorporated ten prior convictions and an out-of-state post-prison supervision term. On appeal, the court determined that Washington sentencing rules under the Sentencing Reform Act do not count probation or supervision from an out-of-state conviction when calculating offender scores, rendering one of the scores incorrect. Although the error on the second count appeared harmless, precedent required reversal of both convictions to permit withdrawal of the guilty pleas. The core reasoning focused on the statutory scoring provisions for adult and juvenile felonies and the indivisibility of plea agreements when a material scoring mistake occurs.

criminal law

The case involved Ester Cortez-Kloehn and her husband suing two doctors for medical malpractice after surgeries in late 2005 and early 2006 that led to infections, intestinal removal, and ongoing health issues. The trial court dismissed the suit as untimely under the statute of limitations, and the Court of Appeals affirmed. The court held that the applicable limitations period is three years under RCW 4.16.350(3), with RCW 7.70.110 serving only as a potential one-year tolling provision for a timely mediation request rather than creating a four-year limit. Plaintiffs failed to establish that they served a mediation demand in 2007, and their 2009 requests came too late to extend an already-expired period, with no material factual dispute on service.

healthcareproceduretorts & liability

In State v. Walters, the defendant was charged with third-degree assault, third-degree theft, and resisting arrest after he took keys from a bar while intoxicated and then struggled with police officers attempting to arrest him. The trial court refused the defense request for a jury instruction on voluntary intoxication, finding that it would require speculation about the defendant's mental state. On appeal, the Washington Court of Appeals held that the evidence of the defendant's intoxication was sufficient to support giving the instruction and that the trial court's refusal was error, but concluded that the error was harmless as to the assault and resisting arrest convictions while reversing the theft conviction. The court also declined to address claims regarding the seizure of the keys due to an insufficient record.

criminal lawprocedure

The case involved a dispute over surplus funds from the foreclosure sale of the Browns' home in Clarkston, Washington. Wells Fargo Bank claimed the funds under a deed of trust securing a commercial loan to the Browns' business, while the Browns sought the funds under Washington's homestead exemption. The trial court determined that the Browns had abandoned their homestead by vacating the property for over six months without filing a declaration of nonabandonment and moving to Florida, and the Court of Appeals affirmed this finding based on substantial evidence including the shut-off of utilities and acquisition of out-of-state licenses. Because the property was no longer their homestead, the Browns could not claim the exemption, and the funds were awarded to the bank.

propertyprocedure

This case involved a challenge by the Kitsap Alliance of Property Owners and two individuals to Kitsap County's updated critical areas ordinance, which imposed marine shoreline buffers of 50 to 100 feet to protect critical areas such as wetlands under the state's Growth Management Act (GMA). The property owners argued that the Shoreline Management Act (SMA) rather than the GMA should govern these areas, and they contested the buffer sizes before the Central Puget Sound Growth Management Hearings Board and in court. After an earlier appellate decision favored the SMA approach based on a split Washington Supreme Court ruling, the legislature enacted 2010 amendments clarifying that GMA regulations apply to critical areas in shorelines until local SMA plans are updated, with explicit retroactive effect to 2003. On remand, the Court of Appeals held that the amendments are retroactive and apply here, reversing its prior ruling and upholding the county's ordinance as compliant with the GMA. The core reasoning centered on the legislature's clear intent for retroactive application of the GMA framework without violating separation of powers or vested rights principles.

environmentpropertybusiness & regulatory

This case involved Kirk Michael, who was convicted after a traffic stop of two felony counts of unlawful firearm possession (one involving a sawed-off shotgun found in a borrowed vehicle), plus misdemeanor counts of fourth-degree assault and reckless driving. The parties agreed, and the court held, that the first felony count must be reversed and dismissed without prejudice because the charging document omitted the required knowledge element under the unlawful firearms statute. The court affirmed the remaining convictions, rejecting the claim of ineffective assistance of counsel for not requesting an unwitting possession instruction, because the defense's strategy of arguing that the state failed to prove knowing possession beyond a reasonable doubt was reasonable and tactical, and an affirmative defense would have improperly shifted the burden to the defendant by a preponderance of the evidence.

criminal lawguns

The case involved Elon Yallup, an enrolled member of the Yakama Nation, who was convicted in Yakima County Superior Court of felony DUI after a blood alcohol test conducted pursuant to Washington's implied consent statute following a crash on the Yakama Indian Reservation. Yallup argued that the state lacked authority to apply the implied consent law to him due to tribal sovereignty, Public Law 280, and the Yakama treaty, moving to suppress the test results. The Court of Appeals of Washington affirmed the conviction, holding that the implied consent statute is primarily criminal rather than civil regulatory under the Cabazon Band framework. The court reasoned that Public Law 280 and RCW 37.12.010 grant the state criminal jurisdiction over the operation of motor vehicles on reservations, and DUI enforcement qualifies as a criminal prohibition applicable to tribal members driving on state highways within the reservation.

criminal lawfederal power